I really wish this weren’t the case, but it is. It’s going to be bad.
Two bills that would ban classroom instruction about sexual orientation and gender identity in Texas public schools before certain grade levels are poised to receive top Republican backing in this year’s legislative session. But critics warn that the legislation could further marginalize LGBTQ students and families while exposing teachers to potential legal threats.
The two bills — authored by Reps. Steve Toth, R-The Woodlands, and Jared Patterson, R-Frisco — closely resemble legislation out of Florida that critics dubbed the “Don’t Say Gay” law. House Bill 631 and House Bill 1155 are among a flurry of anti-LGBTQ legislation awaiting lawmakers when they return to the Capitol on Tuesday.
Florida’s law prohibits schools from teaching about sexual orientation or gender identity from kindergarten through third grade. Both Texas bills mirror such a ban. Toth’s HB 631 would expand the restriction until fifth grade. Patterson’s HB 1155 would extend it to eighth grade.
Their proposals would also prohibit lessons on sexuality and gender identity at any grade level if they are “not age appropriate or developmentally appropriate.” Patterson’s bill doesn’t define what is appropriate for various age groups. Toth’s bill requires the lessons to align with state standards but doesn’t specify which standards.
Like Florida’s law, the two Texas bills don’t explicitly ban the use of the word “gay” in schools. The bills’ authors also maintain that the legislation would protect “parental rights” by allowing parents to more directly control what their children learn in school, including the existence of different sexual orientations and gender identities.
“Parental rights are paramount to the safety and well-being of a child,” Patterson said in a Jan. 3 tweet introducing his bill. “Therefore, I filed HB 1155 to ensure no school teaches radical gender ideology to any child from K-8th grade, and where parents must review and sign off on any health-related services.”
Lt. Gov. Dan Patrick has signaled that he would support passing a Texas version of the Florida law — even before these bills were filed.
“I will make this law a top priority in the next session,” he said in a campaign email last April.
Critics of the legislation argue that the bills’ vague nature would suppress discussion related to LGBTQ issues and representation.
“The reality is that everybody has a gender identity and sexual orientation; avoiding those conversations is incredibly difficult,” Adri Pérez, an organizing director with Texas Freedom Network, told The Texas Tribune. “What it becomes is a tool to be leveraged specifically against LGBTQIA+ people, because what stands out is not the people who fit in but the people who are being specifically targeted and attacked as being different.”
[…]
Chloe Kempf and Brian Klosterboer, attorneys with the American Civil Liberties Union of Texas, said the bills could pose explicit risks to teachers and school districts in the form of lawsuits from parents who believe they’re not following the law.
Toth’s bill outlines a mechanism for parents to sue school districts for violating his proposals, which includes the parental notification portion of that bill. Experts say that part of these bills could require teachers to potentially out their students, and parents could sue districts if teachers don’t comply. School districts would be saddled with the cost of those lawsuits, experts say.
More broadly, Kempf said, the bills would pose risks to schools and educators in the form of potential ultra vires claims, which enable citizens to sue public officials who violate state laws. Although it’s not clear if these types of lawsuits would be successful, Klosterboer said, the larger impact is more confusion and headaches for schools.
“When a law is vague, it allows for discriminatory and targeted enforcement. And it also creates a very hostile and chilling atmosphere where people … go out of their way to self-censor,” Kempf said.
The bills’ vague language could also present challenges for schools trying to protect teachers from potential lawsuits.
“[Schools] might not even know what to tell teachers and staff how to actually protect themselves and protect the school district,” Klosterboer said.
Klosterboer added that it seems “very likely” that if Gov. Greg Abbott signs one of the bills into law, it would invite legal challenges.
[…]
Ultimately, LGBTQ advocates argue that these legislative actions are just another attack on an already marginalized population. As of last week, Texas Republican lawmakers have already filed 35 anti-LGBTQ bills for the 2023 session, far outnumbering the number of such bills that were filed ahead of the 2021 session, according to [Ricardo Martinez, CEO of Equality Texas].
“The legislation is meant to stigmatize LGBTQ people, isolate LGBTQ kids, and make teachers fearful of providing safe and inclusive classrooms,” he said.
There is ongoing litigation over Florida’s “don’t say gay” law. It will eventually be decided by SCOTUS. So yeah, that’s going great, too.
I would like to say something encouraging here. For sure, plenty of smart and passionate and dedicated people will do everything they can to fight these terrible bills, and you should do everything you can to help them. But the reality is that the Republicans have the numbers. They can pass whatever bills they want. This is what they want to do, and they believe they have a mandate after the 2022 election. They’re not going to stop until they’re voted out. Again, I wish I could tell you something else, but I can’t. It’s going to be a very rough six months. The Observer has more.